Citation Nr: 0404554
Decision Date: 02/18/04 Archive Date: 02/27/04
DOCKET NO. 02-21 181 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh,
Pennsylvania
THE ISSUE
Entitlement to an effective date earlier than April 18, 2002,
for entitlement to nonservice-connected disability pension
with additional special monthly pension due to the need for
aid and attendance of another person.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Veteran and daughter
ATTORNEY FOR THE BOARD
Martin F. Dunne, Counsel
INTRODUCTION
The veteran served on active duty from September 1943 to
September 1945.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from rating decisions by the Department of
Veterans Affairs (VA) Regional Office (RO) in Pittsburgh,
Pennsylvania. In October 2003, the veteran and her daughter
testified at a personal hearing held at the RO in Pittsburgh,
Pennsylvania, before the undersigned Veterans Law Judge.
Pursuant to 38 U.S.C.A. § 7107(a) (West 2002), 38 C.F.R.
§ 20.900(c) (2003), the Board has granted a motion for
advancement on the docket in this case due to the veteran's
advanced age.
This appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, D.C. VA will notify you if
further action is required on your part.
REMAND
During the pendency of this appeal, the Veterans Claims
Assistance Act of 2000 (VCAA) was signed into law. This
liberalizing law is applicable to this appeal. See Karnas v.
Derwinski, 1 Vet. App. 308, 312-13 (1991). To implement the
provisions of the law, VA promulgated regulations codified at
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Act and
implementing regulations essentially eliminate the
requirement that a claimant submit evidence of a well-
grounded claim, and provides that VA will assist a claimant
in obtaining evidence necessary to substantiate a claim, but
is not required to provide assistance to a claimant if there
is no reasonable possibility that such assistance would aid
in substantiating the claim. It also includes new
notification provisions.
The application for nonservice-connected pension benefits was
received at the Board on April 18, 2002. Following receipt
of the application, the RO, pursuant to VCAA, provided the
veteran with notice of the evidence necessary to complete the
application, and informed her of the assistance VA would
provide. Based on the evidence received in support of that
claim, the nonservice-connected pension benefits were granted
effective on the date of the receipt of the claim by VA.
Thereafter, the veteran filed a notice of disagreement (NOD)
with the effective date assigned. The Board is bound by
precedent opinions of the VA Office of the General Counsel
(GC). In this regard, because the request for an earlier
effective date was filed in a NOD, VA is not obligated to
notify the veteran of the evidence necessary to complete the
claim. (See VAOPGCPREC 8-2003, December 22, 2003).
However, the GC opinion does not preclude VA from assisting
the appellant in completing her claim.
Recent decisions of the both the United States Court of
Appeals for the Federal Circuit and the United States Court
of Appeals for Veterans Claims have also addressed
shortcomings of VA in its application of VCAA, to include the
most recent decision, Pelegrini v. Principi, No. 01-944 (U.S.
Vet. App. Jan. 13, 2004).
The Board notes that the case at hand depends on the
veteran's health condition in the time period preceeding her
filing a claim for nonservice-connected disability pension,
with additional special monthly benefits due to the need for
aid and attendance of another person. The argument is made
that the veteran suffers from some dementia of the
Alzheimer's type, which prevented her from submitting a claim
for pension at an earlier date than April 18, 2002. During
the veteran's personal hearing in October 2003, testimony was
presented that she was receiving treatment at various VA
medical facilities in the years prior to the date of receipt
of her claim. However, those VA medical records are not in
the claims file. It is important to note that records
generated by VA facilities that may have an impact on the
adjudication of a claim are considered constructively in the
possession of VA adjudicators during the consideration of
that claim, regardless of whether those records are
physically on file. See Dunn v. West, 11 Vet. App. 462, 466-
67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).
It was indicated at the veteran's personal hearing that her
daughter has the veteran's durable power of attorney, a copy
of which is in the claims file, and that the veteran
currently resides with her.
In view of the foregoing, this case is remanded for the
following:
1. The RO should contact the veteran,
and her daughter who hold the durable
power of attorney for the veteran, and
request the names and addresses of all
medical care providers, VA and private,
who treated her, particularly in the
immediate years prior to her filing her
claim for nonservice-connected pension.
In particular, copies of her medical
records from VA medical facilities in
Ohio and Pennsylvania, as noted during
the veteran's personal hearing, are to be
obtained, along with any private
treatment records noted. After securing
the necessary releases, the RO should
obtain copies of those records not
already in the claims file and have them
associated with the claims folder. All
attempts to procure records should be
documented in the file. If the RO cannot
obtain records identified by the veteran
or her power of attorney, a notation to
that effect should be inserted in the
file. The veteran and representative are
to be notified of unsuccessful efforts in
this regard.
2. The RO must review the claims file
and ensure that there has been full
compliance with all notification and
development action required by
38 U.S.C.A. §§ 5102, 5103, and 5103A
(West 2002) and 38 C.F.R. § 3.159 (2003),
and that all appropriate development has
been completed (to the extent possible)
in compliance with this REMAND. If any
action is not undertaken, or is taken in
a deficient manner, appropriate
corrective action should be undertaken.
See Stegall v. West, 11 Vet. App. 268
(1998).
3. Thereafter, the RO should
readjudicate the claim currently on
appeal. The RO is advised that they are
to make determinations on the issue
currently being remanded based on the law
and regulations in effect at the time of
their decisions, to include any further
changes in VCAA and any other applicable
legal precedent. If the benefits sought
on appeal remain denied, the veteran, her
power of attorney, and her representative
should be provided a supplemental
statement of the case (SSOC). The SSOC
must contain notice of all relevant
actions taken on the claim for benefits,
to include a summary of the evidence and
applicable law and regulations considered
pertinent to the issues currently on
appeal. A reasonable period of time
should be allowed for response.
The veteran has the right to submit additional evidence and
argument on the matter the Board has remanded to the regional
office. See Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.43 and 38.02.
_________________________________________________
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).